The High Court
Case Details
A.F.R. RSA No.151 of 2020 IN THE HIGH COURT OF ORISSA: CUTTACK In the matter of an Appeal under Section-100 of the Code of Civil Procedure assailing the judgment and decree passed by the learned 3rd Additional District Judge, Puri in RFA No.20/64 of 2018/2013 in confirming judgment and decree passed by the learned Civil Judge (Jr. Division), Puri in C.S. No.37 of 2011. ……… Pramila Dalei & Others :::: Appellants -:: VERSUS ::- Madhab Dalei & Others :::: Respondents Advocate(s) who appeared in this case by hybrid arrangement (virtual/physical) mode. -------------------------------------------------------------------------------- For Appellants … Ms.Suvalaxmi Devi, Advocate For Respondents … Mr. Sukanta Ku. Dalei, Advocate --------- CORAM : MR. JUSTICE D.DASH -------------------------------------------------------------------------------- Date of Hearing: 09.04.2024 :: Date of Judgment:01.05.2024 -------------------------------------------------------------------------------- D.Dash,J. The Appellants, by filing this Appeal, under Section 100 of the Code of Civil Procedure, 1908 (for short, ‘the Code’), have assailed the judgment and preliminary decree passed by the learned 3rd Additional District Judge, Puri, in RFA No.20/64 of 2018/2013 for partition of the property described in the schedule of the plaint declaring 1/4th share of each of the Respondents-Plaintiffs and 1/4th share to Jagannath Dalei, the original Defendant therein (since dead), who is the predecessor-in-interest of these Appellants. The suit having been preliminarily decreed by the Trial
Legal Reasoning
Court declaring that each of the Respondents (Plaintiffs) are entitled 1/4th share over the suit property, said Jagannath Dalei, the original Defendant being aggrieved by the said judgment and preliminary decree passed by the Trial Court had filed the Appeal under section 96 of the Code. During pendency of that Appeal, said Jagannath Dalei, the Appellant therein (sole Defendant) having died, the present Appellants who are the legal representatives pursued the said Appeal. The Appeal has been dismissed and thereunder the judgment and preliminary decree passed by the Trial Court in the suit have been confirmed. Hence, the present Second Appeal is at the instance of these Appellants (substituted Defendants). 2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to, as they have been arraigned in the Trial Court. Page 2 of 18 3. Plaintiffs case is that the suit property is their ancestral property and they as well as Jagannath Dalei (original Defendant) have been possessing the same jointly by inheriting the same from their ancestor. Plaintiffs and the original Defendant are the four sons of late Das Dalei. In the Sabik Record of Right of the year 1927, land under Khata No.46 of Mauza-Kathuaredi was recorded in the name of Narayan Daalei, Ghana Dalei and Rohini Bewa under Plot No.210, 211 and 215 measuring Ac.0.13 dec., Ac.0.29 dec. and Ac.0.02 dec. respectively. Rohini was possessing land measuring Ac.0.13 dec. under Plot No.210 whereas Narayan and Ghana were possessing Ac.0.29 dec. pertaining to Plot No.211 and Ac.0.02 dec. under Plot No.215. Rohini died issueless and land measuring Ac.0.13 dec. pertaining to Plot No.210 under Khata No.46 devolved upon Narayan Dalei and Ghana Dalei. Subsequent thereto, Narayan and Ghana partitioned those properties relating to Plot No.211, 215 and 210 measuring Ac.0.29 dec., Ac.0.02 dec. and Ac.0.13 dec. respectively; in total coming to Ac.0.44 dec. in two equal shares. Ghana possessed the western half whereas the eastern half was possessed by Narayan. On the death of Narayan, the sons of Das Dalei, the father of the Plaintiffs and the Defendant inherited and possessed those properties of Narayn Dalei. After the death of Das Dalei, the Plaintiffs and Page 3 of 18 original Defendant inherited the same and remained in possession. It is further stated that by the time of Settlement Operation in the said Mauza, Das Dalei and his wife were dead. The Plaintiffs and Defendants (since dead) were in joint mess. The original Defendant was in-charge of the joint undivided property as the Karta of the family and he too was looking after the Settlement and Consolidation Operation. It is alleged that by practicing fraud, the original Defendant got his name recorded in both the Settlement and Consolidation Record of Right relating to the suit land to the exclusion of others (Plaintiffs). When the Plaintiffs approached the original Defendant for partition of the suit property, he refused. Therefore, the suit has come to be filed. 4. The Defendant in the written statement stated that the Plaintiffs have never possessed the suit property at any point of time within a period of twelve years next before the filing of the suit. On that ground, the suit is attacked as barred by limitation. It has been further pleaded that the issue as to right, title and interest over the suit property having already been decided by the Consolidation Authority, the same is no more open to challenge in the present suit. The Defendant submitted that the suit property is their ancestral property and their father died long prior to the Page 4 of 18 Hal Settlement Operation leaving the Plaintiffs and the original Defendants as his heirs and successors. It is next stated that after the death of their father due to dissention amongst the members of the family, it become difficult for them to live in joint mess and estate by jointly possessing the suit properties along with other properties. So, there was an amicable partition of all their properties including the suit properties left by their father and inherited by them in metes and bounds. As per the said partition, the suit property with some other properties left by their father were allotted to the original Defendant and in his share. Since then, he claims to be in possession of the said allotted property, which includes the suit property. So, during Hal Settlement Operation and Consolidation Operation, the Record of Rights relating to the suit property are said to have been rightly prepared in favour of the Defendant. It is also stated that in similar way the properties which were allotted to the share of the Plaintiffs have been separately recorded in their name in the Hal Settlement and Consolidation Operation and the Record of Rights have been issued to them. The Defendants states that his only residential house stands over the suit property where he has been residing with his family members. Page 5 of 18 5. On the above rival pleadings, the Trial Court framed as many as eleven (11) issues. Rightly taking up Issue No.1,2,3,6 and 7 together for decision as those are interlinked, upon examination of evidence and their evaluation, the finding has been returned in favour of the case/claim of the Plaintiffs by holding that the parties have definite share over the said property. In other words, the Trial Court rejected the claim of the original Defendant that the suit property had fallen in his share in the partition. Proceeding to answer other issues as to the correctness of the Settlement and Consolidation record of right relating to the suit land, the Trial Court on going through the evidence on record and discussing the provisions of law holding the field has answered that the Settlement as well as the Consolidation Authority have not correctly prepared the Record of Right. In that view of the matter with the admitted relationship of the parties, each of the Plaintiffs have been held entitled to 1/4th share over the suit property. 6. As against the judgment and preliminary decree passed by the Trial Court, the First Appeal being filed; the First Appellate Court upon reappreciation of evidence independently at its level and addressing the rival contentions raised before it, has affirmed all those findings. Page 6 of 18 Accordingly, the First Appeal has been dismissed confirming the judgment and preliminary decree passed by the Trial Court. 7. The Appeal has been admitted to answer the following substantial question of law:- “Whether the apparent omission to read the plaint averments revealing that there was a partition earlier in respect of the other joint properties in the nature of ‘agriculture land’, has affected the framing of appropriate issues on which the right decision of the case appears to depend and thereby placing the burden of proof on the wrong shoulder, the learned courts below have erred in deciding the suit, against the defendant-appellants?” 8. Learned counsel for the Appellants (Defendants) submitted that the Courts below have completely erred both on fact and law in holding that the suit properties are liable to be partitioned. She submitted that in view of the pleadings of the Plaintiff that there has been a partition in respect of the other joint family properties in the nature of agricultural land, the burden of proof ought to have been placed upon the Plaintiffs to prove that the suit property was not the subject matter of the previous partition which was a partial one and by giving out reasons also to show as to why the suit property was not put to partition. He submitted that the Page 7 of 18 Courts below here in the case have wrongly placed the burden of proof upon the Defendant to establish the above said fact. He, therefore, urged that the substantial question of law need be answered against the case/claim of the Plaintiffs. In support of his submission, he placed reliance upon the following decisions:- (a) Mst. Kharbuja Kuer Vs. Jangbahadur Rai, AIR 1963 SC 1203; b) Poona Ram Vs. Moti Ram (D) th. L.Rs. & Others, AIR 2019 SC 813; (c) Smriti Debbarma (Dead) through Legal Representatives Vs. Prabha Ranjan Debbarma & Others, MANU/SC/0010/2023; (d) Nira Dei Vs. Sadasiba Mahanta & Others, AIR 1974 Ori 165; and (e) Kesharbai (D) by L.Rs. & Ors. Vs.Tarabai Prabhakarrao Nalawade & Ors., MANU/SC/0208/2014. 9. Learned counsel for the Respondents (Plaintiffs) submitted all in favour of the findings returned by the Trial Court which have been affirmed by the First Appellate Court. According to him, the Plaintiffs having pleaded that other Page 8 of 18 properties had been partitioned and having specifically pleaded that the suit properties were not the subject matter of the partition amongst the parties at any point of time, the Courts below in view of the pleadings in the written statement that there was a partition and the Defendant has got the suit land as his share in the said partition, did commit no wrong in putting the burden of proof upon the shoulder of the Defendant to establish that in that partition, the suit property had fallen to his share since it is admitted that the suit property was the ancestral property of the parties and they jointly inherited the same. He further submitted that when the Trial Court as well as the First Appellate Court after threadbare analysis of evidence, both oral and documentary on record, have concurrently arrived at a finding that the suit properties were not partitioned amongst the parties in metes and bounds and as their surfaces absolutely no perversity therein, the judgments and preliminary decrees based on that finding are not liable to be interfered with in seisin of Second Appeal. 10. Keeping in view the submission made, I have carefully read the judgments passed by the Courts below. I have also carefully gone through the decisions cited by the learned
Legal Reasoning
counsel for the Appellants. Page 9 of 18 11. Admitted factual position stands that the suit property is the ancestral property of the parties, which they have inherited. The parties are the sons of late Das Dalei and as such they are the four brothers. The Plaintiff claimed partition of the suit property in equal shares amongst themselves. The plaint averments are that although the parties have amicably partitioned their agricultural properties amongst themselves, the suit property being the homestead property where the parties were residing in separate portion of the house as per convenience had not been divided. At this stage, the Plaintiffs have levelled an allegation that despite the fact that the suit property continued to be the joint property of all the brothers without being partitioned in metes and bounds, the Defendant resorting fraudulent means, has obtained the Hal record of right and Consolidation record of right in respect of the suit property in his name exclusively. At this point, taking a pause, turning the attention to the response of the Defendant in his written statement to the above case projected by the Plaintiffs, it would be found that his pleading is to the effect that after the death of their father due to bickering it became difficult for them to live in joint mess and jointly possess the suit property and other Page 10 of 18 undisputed family properties left by their father. So, there was an amicable partition of the suit property and other undisputed family properties left by their father in metes and bounds and as per that partition, the suit property with other undisputed property left by their father had been allotted to him and since then, he is continuing to be possess the same. This is said to be the basis for exclusive recording of the suit land in his name in the Record of Right prepared during the Settlement and Consolidation Operation. The main submission of the learned counsel for the Defendant was that the Trial Court as well as the First Appellate Court has wrongly placed the burden the proof upon the original Defendant. It was argued that since the Plaintiff have taken the stand of partial partition and that gives rise a presumption as to the total and complete partition of the properties available in the hands of the parties at that point of time, as the Plaintiffs have failed to discharge the burden of proof that in the said partial partition concerning agricultural property and other undisputed properties, this suit property was not the subject matter and had not been brought to the hotchpot for some good reasons or others for which the suit ought to have been dismissed even without taking into account that the Defendant have Page 11 of 18 failed to prove the fact which he has pleaded in the written statement. 12. Position of law is no more res integra that in a suit or legal proceeding when the material factual position required to be decided in view of the rival case set up by the parties, the Court at first has to decide that on whom the burden of proof lies and then to proceed with the exercise of examination and evaluation of the evidence of that party on whom the burden of proof rests and find out as to how far he has been able to discharge the same and then to conclude as to whether with such evidence it being so held as acceptable if the onus has shifted upon the shoulder of the adversary. It then examining the evidence of other side and accordingly take a decision as to the proof of either of the rival case projected by the respective parties. 13. The first consideration in that celebrated case of Kharbuja Kuer (supra) was whether the High Court was right in reversing the concurrent finding of fact that the two widows had put their thump marks without understanding the true impact of the document, in saying that said findings were vitiated on the erroneous view of the law in the matter of burden of proof. That was a case where the document had been purported to have been executed by two widows. The Page 12 of 18 Trial Court as well as the First Appellate Court had concurrently found that the two widows put their thumb marks without understanding the true import of the document. Said concurrent finding was set aside by the High Court on the ground that the Courts below have so arrived on an erroneous view of law in the matter of burden of proof. The said judgment of the High Court was held by the Hon’ble Apex Court to be consisting of the propositions appearing to be contradictory. The view taken by the High Court that it was the duty of the Plaintiffs to prove that fraud was committed and as that had not been established, the question whether the document was read over and explained to the Plaintiffs did not arise and was wholly wrong. The reason assigned by the Apex Court being that in cases of Indian Paradanashin lady, they have been given special protections in view of the social conditions of time and they are presumed to have an imperfect knowledge of the world, and, by the purdah system, they are practically excluded from social interaction and communication with the outside world. In that connection, the observation of Lord Summer made in case of Farid-Ud-Nisa Vs. Mukhtar Ahmed, (1925) L.R. 52, Ind. Ap, 342, which had traced the origin and Page 13 of 18 customs and stated the principle on which the presumption is based had been given due regard to. In the ultimatum, the Hon’ble Apex Court has held that the burden of proof in that case was upon the person, who seeks to sustain the document executed by Paradanashin ladies in proving that they executed it with a true understanding mind and the proof of the fact that it has been explained to her is not the only mode of discharging the said burden. But the fact that they voluntary executed the document or not would be ascertained from other evidence and circumstances. 14. The submission of the learned counsel for the Appellant thus appears to be having the force that the burden of proof in a particular case when wrongly placed on a party that becomes an error of law and it vitiates the entire exercise of appreciation of evidence right from the beginning till the end which becomes futile and, therefore, the conclusion arrived at cannot be sustained. In that light the present case is thus required to be examined as to whether the Trial Court as well as the First Appellate Court ought to have placed the burden of proof that the suit property had not been partitioned in the previous partition lies on the Plaintiffs in view of the presumption that once a partition was made, it would be Page 14 of 18 presumed to have been made for all the properties of the parties. 15. Averting to the case, at hand, at the risk of repetition, it be stated that as against the case of the Plaintiff that there being partition in relation to other property, the suit property has not been partitioned amongst the parties, the original Defendant has projected the case that in that very partition, this suit property was also the subject matter and that had fallen to his share and, therefore, it has been rightly recorded in his name in the settlement and consolidation operation. The parties are not at dispute that they all had succeeded to the suit property as well as other property after the death of their father, having definite interest therein. Admittedly, there is no document relating to partition. The Plaintiffs as well as the original Defendant accept that there was a partition of the properties, which they inherited, amongst themselves. The controversy centers round the fact as to whether in that partition, the suit property had fallen to the share of original Defendant and as such he is the exclusive owner of the same, wherein the Plaintiffs have no right, tile and interest so as to be entitled to any share over the same. Thus, here it is not at all a case where the Plaintiffs pleading partial partition merely claims the share over the suit Page 15 of 18 property so that the presumption as to complete partition of all the properties between the parties would stand against them requiring them to dispel in order to be entitled to the relief over that particular item of property. But here the original Defendant has been very categorical in stating that the suit property was very much the subject matter of that partition wherein the suit property came to be allotted to him. In that peculiarity of the pleading of the Defendant, the burden of proof of said fact would lie upon the original Defendant and only in case he has discharged the said burden of proof and the Plaintiffs then are found to have failed in satisfactory repelling the same, the plaintiffs entitlement over the suit property would stand denied. In that view of the matter, the ratio of the decisions in case of Nira Dei (supra) and Kesharbai (D) by LRs and Others (supra) would not come to the aid of the Defendant. The Trial Court as well as the First Appellate Court, therefore, in my considered view have rightly placed the burden of proof upon the original Defendant to show through clear, cogent and acceptable evidence that the suit property in that partition which admittedly had taken place between the parties had been allotted in his share and that has been rightly taken as basis of preparation of the record of Page 16 of 18 right in relation to that land in the settlement and consolidation operation. 16. Having said so, next coming to examine as to whether the burden of proof of the above fact how far has been discharged by the original Defendant, it is first of all found that the original Defendant who was a party to that partition being alive during the suit had withheld himself from the witness box. As his substitute, his two sons have been examined as D.W.1 and D.W.2. The D.W.1 states to have got the written statement filed by the original Defendant prepared as per his instruction. In the written statement, it having been pleaded that the suit property is the ancestral property; during Trial, it has been given a go-bye in asserting that the same is the self-acquired property of the original Defendant which is further strenuously asserted by D.W.1 that the suit property is the self-acquired property of his father (original Defendant) in again stating that his father (original Defendant) had not got the suit land on amicable partition. The other son of the original Defendant examined as D.W.2 having first expressed his ignorance as to how his father got the property in suit has however again stated that he got it in partition and in the absence of other evidence as Page 17 of 18 to long and continuous dealing with the suit property by the original Defendant wholly to the exclusion and deprivation of the Plaintiffs when the record rights published in the Settlement and Consolidation Operation are said to be based upon the allotment of suit property in that partition in favour of the original Defendant, this Court finds that the Trial Court and the Frist Appellate Court are absolutely right in holding that the burden of proof that the suit property had been allotted to the original Defendant in the partition and had fallen in his share in the partition where all the properties of the parties had been amicably divided has not been discharged. The substantial question of law accordingly receives its answer against the case/claim of the Defendants which in turn leads to confirm judgments and preliminary decrees passed by the Trial Court as well as the First Appellate Court. 17.
Decision
In the result the Appeal stands dismissed. There shall, however, be no order to costs. Himansu Signature Not Verified Digitally Signed Signed by: HIMANSU SEKHAR DASH Reason: Authentication Location: OHC Date: 08-May-2024 19:42:56 (D. Dash), Judge. Page 18 of 18